Inman v. The Lindrup , 70 F. 718 ( 1895 )

NELSON, District Judge

(after stating the facts). It is the locality where the vessel was seized which must determine the jurisdiction of this court over the res in the case at bar. In the view I take of the case, it will be necessary to examine only the question of jurisdiction. It, is urged that this question was settled by Judge Williams upon the motion before him, and is now res adjudí-cala; and, further, that the effort of claimant, to attack the jurisdiction of the court at this time can succeed only by permitting him to dispute and contradict the return of the marshal, which should not be allowed. I do not think the question now presented is res adjudícala, as it was not passed upon by Judge Williams. II.e did not expressly hold that; the point stated by the marshal in Ms return as to where he seized the tug, to wit, 3,000 feet from the pier at Sault Hte. Marie, was within the territorial limits of the jurisdiction of the district court of Minnesota; but only that the open waters of Lake ¡Aiqterior were within its jurisdiction. Neither does it follow that to permit a plea to the jurisdiction to be filed, and testimony to be taken thereunder to show that the tug was seized outside of the jurisdiction of this court, contradicts the marshal’s return. The supposed difficulty in this case has arisen from the fact that the marshal, not satisfied with making a return that he had attached the tug in obedience to the monition, states, in addition, that the place where lie made the seizure was within the open waters of Lake Superior, which statement was a conclusion that the marshal was not authorized to find. Manifestly, it would' be unjust to hold that a return not necessary to be made, in respect to the place of seizure, could give the court jurisdiction of the res, and leave the claimant remediless, except by suit against the marshal. The court decides the question of jurisdiction, and not the marshal. The duty of the latter is to obey the monition, and be has no power to preclude fhe examination of a jurisdictional question by an unauthorized statement in his return. The libelant pursued the proper course in embracing a plea, to the jurisdiction of ¡.lie court witli his answer to the merits. Ben. Adm. (2d Ed.) § 368. On the pleadings and proof the plea must be sustained, and the libel dismissed, for want of jurisdiction. No decree can be made as to costs. Each, party is responsible to the officers of the court for costs incurred at Ms instance. Doolittle v. Knobeloch, 39 Fed. 40, and cases cited; The Hungaria, 41 Fed. 112. Let a decree be entered accordingly.